Another v. Philleo

• Citation: 33 Tex. 395
• Parties: TRAMMEL AND ANOTHER, ADMINISTRATORS, ETC., v. T. L. PHILLEO, ADMINISTRATOR, ETC.
• Decision Date: 01 January 1870
• Court: Supreme Court of Texas

33 Tex. 395

TRAMMEL AND ANOTHER, ADMINISTRATORS, ETC.,

v.T. L. PHILLEO, ADMINISTRATOR, ETC.

Supreme Court of Texas.

1870.

1. During the rebellion an administrator obtained orders of the probate court to sell assets “for cash,” and under such orders he made sales for Confederate notes, which he paid to such creditors of the estate as would accept them. After the close of the rebellion the probate court permitted him to resign his letters of administration, and to settle his accounts on Confederate money returns and vouchers. Held, that the orders and judgments of the probate court, approving such accounts and discharging the administrator, are not merely erroneous, but are null and void, and must be so held in all collateral as well as direct proceedings wherein their validity becomes a question. Held, further, that the administrator must be charged with the value of the assets at the time he sold them for Confederate notes; that such creditors as received from the administrator full payment in such notes shall not be allowed to revive their claims against the estate; and, the estate being insolvent, the pro rata dividends to which such creditors would, if paid in legal currency, be entitled, are to be allowed to the administrator as credits. And further held, that the administrator's commissions are to be computed upon the like lawful money basis, and he is not to be allowed commissions upon his commissions.

2. Attorney's fees, reasonable in amount and shown to have been necessarily incurred in the administration of the estate, are allowable to an administrator; but liberal commissions should not be allowed to an administrator, and attorneys be also paid out of the estate for conducting the administrator's business.

3. The administrator and the sureties upon his bond are liable to the creditors of the estate for the settlement of his trust in accordance with the directions here given.

APPEAL from Rusk. Tried below before the Hon. J. B. Williamson.

John Robertson died in the year 1863, and Philleo, the appellee, was appointed administrator of his estate.

The appellants were creditors of the estate, but did not present their claim to the administrator, duly probated, within one year from the issuance of the letters of administration.

The record is voluminous and full of matters of account, but it is not necessary to state them in detail. The opinion of the court states clearly the most material facts. The appellants filed exceptions in the probate court to the final account and report of the administrator, but that court approved the account and settlement, and the appellants took the case by appeal to the district court, where the case also resulted against them, and they therefore appealed to this court.

Martin Casey and W. W. Morris for the appellants. Article 1344, Pas. Dig., prescribes the order of payment when the administrator has funds in his hands, but not enough to pay all the debts, or when the estate is insolvent. First, claims having a preference, which must be paid in full, “and then to the payment pro rata of the other claims allowed and approved, or established; taking into consideration, also, the claims that were presented within the twelve months, and in suit, or on which suit may yet be instituted.” Perhaps it will be contended by the appellee, that the appellant's claim, though presented within the twelve months, not having been approved within that time, is not entitled to a pro rata share, the estate becoming insolvent by reason of the effects of the war. It appears by comparing this article with article 1339, Pas. Dig., which provides for payments: first, “funeral expenses and expenses of last sickness; second, all expenses of administration; * * * third, debts secured by mortgage or lien; * * * fourth, all other debts. * * * When there is a deficiency of assets, debts of the fourth class shall be paid pro rata; and no executor or administrator shall be allowed to pay any claims of the fourth class, whether the estate is solvent or insolvent, except with their pro rata amount of the funds of the estate that have come to hand.” Both these articles are part of the same act of 1848, and must receive that construction which will give force and effect to each provision, and not such construction as will make one contradict and partly repeal the other. Both will harmonize by reading the last clause of article 1344 thus: “Taking into consideration, also, the claims that were presented within the twelve months, and the claims that are in suit, or on which suit may yet be instituted.” In violation of both these articles, the administrator paid a large amount of claims in full, and refused to pay George W. Trammel anything because he refused to take Confederate treasury notes. He was under no moral, equitable, or legal obligation to take anything in payment of his claim, except gold or silver, for no other medium was then a legal tender. The administrator should be held responsible for the excess of the debts he paid in full over their pro rata share.

In Lockhart v. White, 18 Tex. 102, the supreme court, on page 108, refers to article 1187, Hart. Dig. (which is art. 1338, Pas. Dig.), as prescribing the order in which debts shall be paid. The court say: “The appellant insists that under article 1192 (which is art. 1344, Pas. Dig.) the mode of payment of debts of an estate is prescribed, and payment without an order of the court makes the administrator responsible for all the debts. This view of the law is believed to be unsound. The article 1187 declares the order in which debts shall be paid; and by article 1189 the administrator, when he shall have funds of the estate, is required to pay.” The court in the same place, page 108, shows the liability of an administrator who pays some claims wholly and pays nothing on others. The court say: “And if the payment be not in due order, that is, if payment be made to one or more creditors of a portion or the whole of their claims, (as is charged to be the case here), and no such payment is made on other claims of the same class or degree, this would not render the administrator liable for the debts unpaid out of his own property. The county court might refuse to allow such payment in the account of the administrator, and make him liable to the extent of the assets thus misapplied.” This is what was asked by the appellants, and refused by both the courts below, and so the sixth assignment is well taken.

There is no provision in our statute by which an executor or administrator can sell property otherwise than for cash or on credit, and the law gives the county court no power to direct sales of decedent's property, to be paid for in any other manner, or by any other means, than in cash ultimately. See arts. 1321 and 1322, Pas. Dig. The exception mentioned in the latter article is in relation to sale for cash, or on credit, “when the sales are ordered to raise the amount of the allowance that may be made under the provisions of the forty-fourth and forty-fifth sections of this act, or for the satisfaction of a mortgage or lien on said land or slaves, in which cases such sales shall be made on such terms as the chief justice may direct.” That is, such sales may be for cash, or on credit, or partly cash and partly credit, because the same article prescribes that “sales of personal property, other than slaves, for the payment of debts, may be ordered for cash, or on credit, and all sales of land or slaves, for the payment of debts, shall be made on a credit of twelve months.”

Should the county court order a sale of property for the promissory note of an insolvent, or an alien enemy, that order would be a nullity, because the law provides what the consideration shall be. Such order may be collaterally attacked for want of power in the court, and so, for want of jurisdiction; and the purchaser, under such order, could obtain no title to the property sold.

Withers v. Patterson, 27 Tex. 493, was a suit in trespass to try title. The land sued for by the surviving wife and children of Withers had been purchased at administrator's sale. On the trial, it appeared that the administration had been closed before the appointment of Jones as administrator. Jones applied for and obtained an order of the probate court that all the real estate of Harrison be sold, because “some small debts have been made against the estate for fees of office,” etc. Judge Bell, delivering the opinion of the supreme court, says, page 495: “The jurisdiction of a court means the power or authority which is conferred upon a court, by the constitution and laws, to hear and determine causes between parties, and to carry its judgments into effect. It is a plain proposition that a court has no power to do anything which is not authorized by law. The powers of county courts, in respect to the estates of decedents, are all conferred by statute. Whatever the statute authorizes the court to do, it may rightfully do, but it does not follow, because the statute authorizes the court to order the sale of land under certain circumstances, that all sales of land by order of the court are authorized.” And on page 497 and 498, he says: “Orders or judgments which the court has not the power, under any circumstances, to make or render, are of course null, and being null, their nullity may be asserted in any collateral proceeding where they are relied on in support of a claim of right.” There is one instance in which the administrator may take property or claims for debts due to the estate he administers. The provision is found in art. 1337, Pas. Dig.

Trammel v. Swan, Adm'r, 25 Tex. 473, was a suit on a note made to a former administrator, Legrand. The defendants plead, by way of payment, the receipts of Legrand for several claims placed in his hands by the defendant, and in those receipts he agreed that the amount of the claims should be payments on the note of the defendants. The supreme...